Opinion
(August Term, 1848.)
A deed of trust for land, which has no consideration except that the land should be sold for the payment of debts for which the bargainee was bound as surety, will not operate as a bargain and sale.
APPEAL from the Superior Court of Law of RUTHERFORD, at Spring Term, 1848, Battle, J., presiding.
Baxter for plaintiff.
Bynum for defendant.
The action was brought against Alley, who was the tenant in possession, and the other defendant, Adam Hampton, was admitted to defend with him. The plaintiff claimed title to the premises as follows: The defendant Alley, being in possession, made a deed to John W. Hampton and Samuel S. Hampton, thus expressed: "Know all men by these presents, that I, John H. Alley, have bargained and sold unto John W. Hampton and Samuel S. Hampton, of, etc., all my right and title to the land which I now live on, lying etc., to them, their heirs and assigns, to be held by them for the following purposes, to wit, to raise from the said property the sum of $450, due from John H. Alley to the Bank of the State of North Carolina, for which Jonathan Hampton, Sr., is surety, and also to secure them, the said John W. Hampton, and Samuel S. Hampton, for their becoming sureties for me, the said John H. Alley, for the sum of $500 to Robert G. Twitty; and so soon as it becomes necessary to carry this agreement into effect and to raise the money from the sale of the property for the purposes above mentioned, then the said J. H. and S. S. H. are to take the same into possession and expose the same to sale for ready money, giving notice, etc., and out of the proceeds of sale pay," etc. Afterwards (458) the trustees sold the premises to the lessor of the plaintiff for $500, and conveyed to him by deed purporting to convey the fee, with special warranty.
On the trial the counsel for the defendants raised several objections, among which one was that the deed from Alley passed nothing, because it was not founded upon any pecuniary consideration. The plaintiff then gave evidence that the deed was made in consideration that the other parties, J. W. H. and S. S. H., would become Alley's sureties for the debt to Twitty and to secure them in so doing, and also to secure the payment of the debt to the bank. Thereupon the court instructed the jury that the deed passed the land as against Alley; and the plaintiff had a verdict and judgment, from which the defendant appealed.
Upon the opening of the case it struck us that the deed might be supported by the debts mentioned in it, as a consideration, the securing and paying them being the real motive for making it. But looking further into the point, it is found not to be so. If there were a proper consideration to raise a use in the intended trustees and under the statute to vest the legal estate in them, then those debts would sustain the deed as against creditors and purchasers, as far as its validity depended upon the bona fides and adequacy of the consideration on which it was executed. The same would, no doubt, be true, as making those debts a sufficient consideration to support this deed as a contract and equitable assignment of Alley's interest in the land, whatever it might be. But as a valuable consideration they are not sufficient to support the deed as a bargain and sale to the trustees. The deed can only operate as a bargain and sale, if at all, since there is no good consideration of (459) blood to turn it into a covenant to stand seized, nor any to give it any other operation. But as a bargain and sale it must have a valuable consideration, that is money or money's worth. Though not expressed in the deed such a consideration may be averred, and if established it will make the deed good. Mildmay's case, 1 Rep., 25. Therefore, the evidence was properly admitted here; but, unfortunately it carried the consideration no further than the deed itself does, and the case is to be determined on the consideration therein expressed. Now, it was held early after the statute of uses, that if one, in consideration that another is bound as surety for him, bargain and sell his land to the latter and his heirs, it will not operate as a bargain and sale. Ward v. Lambert, Cro. Eliz., 394. That case was, that one reciting that A. was bound in recognizances and other bonds for him, bargained and sold land to him and his heirs, and it was found that there was no money paid. Whether that was a good bargain and sale was the question; and it was held not, because in the words of Walmsley, J., "in every bargain and sale there must be a quid pro quo, but here the vendor hath nothing for his land, and therefore it is void." Upon the authority of that case the doctrine is laid down as undoubted law by writers of the highest character (Shep. Touch., 222, Preston's Edition; Com. Dig. Bargain and Sale, B. 11); and by no one has it since been questioned. Indeed, it is obvious here that neither the bargainees nor any others were out of pocket one cent for this land — at least, for this bargain for it; nor did any one oblige himself to the bargainor to pay to or for him any sum as the price of it; a peppercorn would have answered; but as not even that was given or secured, no use could arise to the bargainees upon the contract on which the statute could operate, and nothing passed to them in law. The price paid by the lessor of the plaintiff to the trustees was given for their estate in the land and not for Alley's interest; and, indeed he received nothing from either the trustees or the purchasers in the view of the law, for (460) his interest, and therefore it continues in him.
PER CURIAM. Judgment reversed, and venire de novo.
Cited: Bruce v. Faucett, 49 N.C. 393; Wiswall v. Potts, 58 N.C. 189; Salms v. Martin, 63 N.C. 610; Morris v. Pearson, 79 N.C. 260.